§ 1164. A similar exclusive power was given to congress by
the confederation. That such a power ought to exist in the
national government, no one will deny, who believes, that
it ought to have any powers whatsoever, either for offence
or defence, for the common good, or for the common
protection. It is, therefore, wholly superfluous to reason
out the propriety of granting the power. It is self-evident,
unless the national government is to be a mere mockery
and shadow. The power could not be left without extreme
mischief, if not absolute ruin, to the separate authority of
the several states; for then it would be at the option of any
one to involve the whole in the calamities and burthens of
warfare. In the general government it is safe, because
there it can be declared only by the majority of the states.

§ 1165. The only practical question upon this subject
would seem to be, to what department of the national government
it would be most wise and safe to confide this
high prerogative, emphatically called the last resort of sovereigns,
ultima ratio regum. In Great Britain it is the exclusive
prerogative of the crown; and in other countries, it is
usually, if not universally, confided to the executive department.
It might by the constitution have been confided
to the executive, or to the senate, or to both conjointly.

§ 1166. In the plan offered by an eminent statesman in
the convention, it was proposed, that the senate should
have the sole power of declaring war. The reasons, which
may be urged in favour of such an arrangement, are, that
the senate would be composed of representatives of the
states, of great weight, sagacity, and experience, and that
being a small and select body, promptitude of action, as
well as wisdom, and firmness, would, as they ought, accompany
the possession of the power. Large bodies necessarily
move slowly; and where the co-operation of different
bodies is required, the retardation of any measure
must be proportionally increased. In the ordinary course
of legislation this may be no inconvenience. But in the exercise
of such a prerogative, as declaring war, despatch,
secresy, and vigour are often indispensable, and always
useful towards success. On the other hand it may be urged
in reply, that the power of declaring war is not only the
highest sovereign prerogative; but that it is in its own nature
and effects so critical and calamitous, that it requires
the utmost deliberation, and the successive review of all
the councils of the nation. War, in its best estate, never
fails to impose upon the people the most burthensome
taxes, and personal sufferings. It is always injurious, and
sometimes subversive of the great commercial, manufacturing,
and agricultural interests. Nay, it always involves
the prosperity, and not unfrequently the existence, of a
nation. It is sometimes fatal to public liberty itself, by introducing
a spirit of military glory, which is ready to follow, [Volume 3, Page 121]
wherever a successful commander will lead; and in a
republic, whose institutions are essentially founded on the
basis of peace, there is infinite danger, that war will find it
both imbecile in defence, and eager for contest. Indeed, the
history of republics has but too fatally proved, that they are
too ambitious of military fame and conquest, and too easily
devoted to the views of demagogues, who flatter their pride,
and betray their interests. It should therefore be difficult in
a republic to declare war; but not to make peace. The representatives
of the people are to lay the taxes to support a
war, and therefore have a right to be consulted, as to its
propriety and necessity. The executive is to carry it on,
and therefore should be consulted, as to its time, and the
ways and means of making it effective. The co-operation
of all the branches of the legislative power ought, upon
principle, to be required in this the highest act of legislation,
as it is in all others. Indeed, there might be a propriety
even in enforcing still greater restrictions, as by requiring
a concurrence of two thirds of both houses.

§ 1167. This reasoning appears to have had great weight
with the convention, and to have decided its choice. Its
judgment has hitherto obtained the unqualified approbation
of the country.

§ 1168. In the convention, in the first draft of the constitution,
the power was given merely "to make war." It
was subsequently, and not without some struggle, altered
to its present form. It was proposed to add the power "to
make peace;" but this was unanimously rejected; upon the
plain ground, that it more properly belonged to the treaty-making
power. The experience of congress, under the
confederation, of the difficulties, attendant upon vesting
the treaty-making power in a large legislative body, was
too deeply felt to justify the hazard of another experiment.

§ 1169. The power to declare war may be exercised by
congress, not only by authorizing general hostilities, in
which case the general laws of war apply to our situation;
or by partial hostilities, in which case the laws of war, so
far as they actually apply to our situation, are to be observed.
The former course was resorted to in our war with
Great Britain in 1812, in which congress enacted, "that
war be, and hereby is declared to exist, between the
United Kingdom of Great Britain and Ireland and the dependencies
thereof, and the United States of America and
their territories." The latter course was pursued in the
qualified war of 1798 with France, which was regulated by
divers acts of congress, and of course was confined to the
limits prescribed by those acts.

§ 1170. The power to declare war would of itself carry
the incidental power to grant letters of marque and reprisal,
and make rules concerning captures. It is most
probable, that an extreme solicitude to follow out the powers
enumerated in the confederation occasioned the introduction
of these clauses into the constitution. In the former
instrument, where all powers, not expressly delegated,
were prohibited, this enumeration was peculiarly appropriate.
But in the latter, where incidental powers were expressly
contemplated, and provided for, the same necessity
did not exist. As has been already remarked in another
place, and will abundantly appear from the remaining
auxiliary clauses to the power to declare war, the constitution
abounds with pleonasms and repetitions, sometimes
introduced from caution, sometimes from inattention, and
sometimes from the imperfections of language.

§ 1171. But the express power "to grant letters of
marque and reprisal" may not have been thought wholly
unnecessary, because it is often a measure of peace, to prevent
the necessity of a resort to war. Thus, individuals of
a nation sometimes suffer from the depredations of foreign
potentates; and yet it may not be deemed either expedient
or necessary to redress such grievances by a general
declaration of war. Under such circumstances the law
of nations authorizes the sovereign of the injured individual
to grant him this mode of redress, whenever justice is
denied to him by the state, to which the party, who has
done the injury, belongs. In this case the letters of marque
and reprisal (words used as synonymous, the latter (reprisal)
signifying, a taking in return, the former (letters of
marque) the passing the frontiers in order to such taking,)
contain an authority to seize the bodies or goods of the
subjects of the offending state, wherever they may be
found, until satisfaction is made for the injury. This power
of reprisal seems indeed to be a dictate almost of nature
itself, and is nearly related to, and plainly derived from
that of making war. It is only an incomplete state of hostilities,
and often ultimately leads to a formal denunciation
of war, if the injury is unredressed, or extensive in its operations.

§ 1172. The power to declare war is exclusive in congress;
and (as will be hereafter seen,) the states are prohibited
from engaging in it, unless in cases of actual invasion
or imminent danger thereof. It includes the exercise of all
the ordinary rights of belligerents; and congress may
therefore pass suitable laws to enforce them. They may
authorize the seizure and condemnation of the property
of the enemy within, or without the territory of the United
States; and the confiscation of debts due to the enemy.
But, until laws have been passed upon these subjects, no
private citizens can enforce any such rights; and the judiciary
is incapable of giving them any legitimate operation.